Technology in the Courtroom – Is it a Recoverable Cost at Trial?

by: David A. Melton and Lindsay A. Goulding

The use of technology is so prevalent today that it is difficult to imagine an event that is “technology-free”—including a trial. Attorneys use technology to showcase timelines, impeaching testimony from depositions, scene photographs, and animations. Technology, however, is not free. It costs money to prepare the presentations and project them in the courtroom.

Code of Civil Procedure section 1032 allows a prevailing party to recover costs as a matter of right. The Second District Court of Appeal recently indicated that expenses associated with trial technology may be included in recoverable costs.

In Bender v. County of Los Angeles, the plaintiff sued the County and several deputies for unlawful arrest and use of excessive force. The jury found in his favor and awarded him compensatory and punitive damages. The Court awarded substantial costs and attorney’s fees as allowed by statute. The cost award included the expenses incurred in using video equipment, creating a PowerPoint presentation, and having a video technician present during trial. The plaintiff’s attorney used technology to show videos of his client’s post-incident interview and key portions of deposition testimony from witnesses. The Court of Appeal held that the trial court did not abuse its discretion in allowing the plaintiff to recover these costs.

Central to the Court’s reasoning was that it viewed the case as one of witness credibility. Under such circumstances, it would be “inconceivable for plaintiff’s counsel to forego the use of technology” to show the images and convey this information to the jury—particularly since the use of technology in the courtroom is now commonplace (including the use of a technician to monitor equipment and fix glitches) and less expensive than it used to be.

In reaching its conclusion, the Court rejected the County’s reliance on the earlier case ofScience Applications International Corp. v. Superior Court. In that case the requested technology expenses totaled hundreds of thousands of dollars. The Court of Appeal expressed concern that allowing recovery of such a large amount of technology-related costs would place a chill on litigation. In Bender, the technology costs claimed were much more reasonable—about $24,000. Further, the plaintiff’s counsel in that case convinced the trial court that the use of technology enhanced his advocacy and “was reasonably necessary to the conduct of the trial.”

At Porter Scott, we embrace new technology and use it to our clients’ advantage. When our clients prevail at trial, they will be able to recoup the expenses related to trial technology as part of their costs recovery.